The Memphis appeal. [volume] (Memphis, Tenn.) 1886-1890, 1887-10-28

supreme law OF the land, whether the
prisoners point can be sustained is ques-
ton you can only decide after an examina-
ton of the record and hearing Strike
after you hear, but don't strike before you
hear. pray, therefore, award this writ,
for II do not mistake, there are evidences
in this whole record which will demand
the reversal of the judgment"
ATToRNEy-GENERAL HUNT IN REPLY.
Mr. Attorney General Hunt then adj
dressed the court in behalf of the State
and in opposition TO the motion for writ
OF error. To warrant the issuance OF the
writ II must appear he said, from the
record, first, that there is federal qucs-
ton involved, and, second, that such ques-
ton was raised and decided in the State
court. He was not as well informed MS he
would like to be with regard to the exact
points upon which counsel for the petit
TONERS relied. In the first part OF his ar
gument, Mr.. Tucker planted himself
squarely upon the rights which be-
longed to his clients, under the
the latter part he changed grounds
slightly, and insisted that the first ten
amendments were declarations OF indi-
llltn litN NtIt
comprised in the provisions of the four
teenth amendment. The attorney general
opposed this view and insisted that the pro-
hibitions contained in the first ten amend
ments 10 the constitution are limitations
OF the powers OF the federal government
and not upon the States. SO far rs petit
TONERS rely upon anything contained in
those amendments they can have no stand
ing in this court
The fourteenth amendment is equally
foreign to any right, privilege or immuni-
" here claimed by the petitioners.
The fourteenth amendment declares:
'No State shall make or enforce any law
which shall abridgc the privileges or inn
munities OF citizens Of the United States.
nor shall any State deprive any person of
life liberty or property without due
process Of law, nor deny 10 any person
within its jurisdiction the equal protection
ithe laws"
The record will show that the complaint
is not that the State has made or is enforc-
ing n law which deprivcs the petitioners
OF any OF the privileges or immunities
guaranteed by that section, but they are
deprived Of rights by an erroneous con-
struc'ion Of the law, placed upon II by the
trial court OF the STATE.
Petitioners did not claim in the supreme
court Of the State that the Illinois act Of
1874 was rcpugnant Ia the constitution,
treaties or laws Of the United States; not
that the authority OF the court was cxer-
cised under il, but that the act was consti-
tutional and valid, and the court exercised
its power in violation Of that act.
Petitioners were tried in the courts OF the
State under laws OF the State and that con-
stitutcs due process OF law. II is not ma
teridl that this or another court might have
ruled differently under the law.
Due process Of law means law of the
| land. In the case OF Prcsscr W.. the State
of Illinois, in November, 1885, the federal
| question raised was as To the right to bear
arms, and il was contcndcd that the Illi-
nois statute was limitation OF his rights
az a citizen of the United States under
the fourteenth amendment. This court
held that the right TO bear arms was not a
right guaranteed by the constitution III
the United States; that the federal govern
ment was only prevented by the second
amendment from infringing on that right;
that the dealing with such richt was a
matter for State discretion, and that M n
police matter the State could treat II as IL
chose. IL was held Furthermore that
bearing arms was not privilege or I'm
munity" OF citizenship Of the United
States, as contemplated 10y the fourteenth
amendment This decision iorccusts
and bars out the contention Of counsel that
the rights contemplated In the language Of
the iirst ten amendments were all included
in the fourteenth amendment, and eN-
tended especial guarantees and immuni-
ties 10 citizens Of the United States. II
that was not true In the Prcsscr case, then
the limitations Of the constitution upon
federal power are not changed into mum
mcnts Of national citizenship by the four
tccnth amendment for the purposes in
volycd in the petition in this case.
Attorney General Hunt then turncd his
attention 90 the constitutional provision
that "No State shall deny to any person
the equal protection Of the laws and NJ
cited the circumstances under which, and
the purposes for which, II was adopted.
The last section Of this amendmgpt pro
vides that Congress should "havc power "a
enforce by appropriate Legislation the pro,
visions Of this article" lie would submit
TO the court that the equal protection oi
the laws and the privileges and immu
mites" contemplated by this amendment
were only these for whose enforcement
Congress had provided by subsequent leg
islation, and, having acted, Congress In,
exhausted the subject until Il chooses Il
again take II up.
Turning 10 the composition Of the jur,
In the trial court, the attorney general sale
that he did not see how the personnel o
the jury which tried petitioners in thii
case could properly he submitted 10 ta,
court or considered by II in the present
proceeding. This inquiry must be mad'
M 20 the consltntionality 81 the jury Law
II the State Of Illinois, and not M 10 how
State court may have construed that law
The record showed, he believed, that OF
! the challenge Of one juror, a suggestion
was made by one Of the counsel 70
the prisoners, that there was provision
, in the constitution OF Illinois, as we'll as II
, the constitution Of the United States
; guaranteeing TO every person trial by NJ
. impartial jury. The person at who's
! challenge that suggestion was made di'
. not finally sit In the jury that trie'
! the case. lie would submit tina
: in order 10 give the parties
= standing In court, the suggcs
ton or objection must have bee
: made with regard 10 juror who actual
!. tried the case, or that by reason Of the ca
4 hausiion Of their pcremptory challenge
the petitioners were compelled 10 acceI
n an incompetent juror, and were thcrcb
e irrcparably damaged. This question va
: never recorded with regard TO any juro
4 who did actually vi in that ease.
i The Chief Justice-Was u not raised !
Sanford's caS2 think Il is shown IN III
o memorandum which We have here that
Il was rails Il m 10 Sanford.
q Mr.. Grirnoll Cnierrupting)-lf the cou
o please, the memorandum Is not a IA
ID Transcript Of the record.
n / The Chief Justice understand that
" Is not complete record, but ] believe Il